Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), will testify Wednesday, March 16 in Lansing at the House Elections Committee hearing against Senate Bill 776. The bill would restrict signature gathering for both statutory and constitutional amendment ballot initiatives to 180 days.

Steering Committee member Ellis Boal, the attorney for the campaign, will testify and present evidence that the current law (MCL 168.472a), and the amendment to it proposed in SB 776, is unconstitutional as it applies to statutory initiatives. The proposed law also cannot be applied retroactively to an ongoing campaign.

Senate Bill 776 passed the senate last week. The Elections Committee hearing will be at 10:30 am in Room 308 in the House Office Building, Lansing.

The Committee to Ban Fracking started collecting signatures in May 2015 under the assumption, shared by all recent ballot initiative campaigns, it effectively had only 180 days to collect signatures. The Committee came to realize that the presumption against old signatures could be rebutted using the Qualified Voter File established in the 1990s. The campaign resumed collecting signatures to put the ballot proposal on the November 2016 ballot. The approximately 150,000 signatures already collected in 2015, combined with signatures collected in 2016, will be used to reach the goal of 252,523 valid signatures before the State’s June 1, 2016 deadline.

Soon after the Committee resumed signature collecting, the Board of State Canvassers sought public comment on its 1986 rebuttal procedure, and a new updated procedure proposed by the Board’s legal staff that was even more onerous for grassroots campaigns than the 1986 procedure. The proposed new rebuttal procedure would require ballot proponents to attach separate pieces of documentation to each petition sheet. The Committee’s campaign has over 26,000 petition sheets of “old signatures” to rebut. The proposed procedure would make the “rebuttable presumption” effectively irrebuttable.

The Committee’s counsel Ellis Boal explained “In the late 1990s, the Michigan legislature created the Qualified Voter File as the document of record that the State is mandated to use to validate signatures on ballot initiative petitions.”[1]

The law creating a 180-day signature-gathering period with a “rebuttable presumption” against older signatures was first passed in 1973. Immediately the Attorney General opined the law was unconstitutional, and the four-year period between elections for governor is what determined the basis for ballot initiatives. For 12 years, Michigan citizens pursued successful ballot initiatives with an allowable four-year collecting period. Several laws were enacted using ballot initiatives during those years, including the “bottle bill” and the amendment that eliminated sales tax from food and prescription drugs.

In 1986, the Board of Canvassers imposed an onerous policy not found in state statute that required ballot initiative proponents to prove voters were valid twice, at the time of signing the petition and during a later period of time. Also in 1986, the energy industry sued to stop constitutional amendment ballot initiatives. The Supreme Court ruled in Consumers Power v Attorney General that MCL 168.472a was constitutional, “but only as it applied to constitutional amendment initiatives, not statutory initiatives such as the Committee to Ban Fracking’s,” said Boal. The two different initiatives are governed by different parts of the state constitution.

“No court has ruled against statutory initiatives. The AG’s opinion that this law is unconstitutional for them is still good law. That means our campaign –a statutory initiative--does not have to abide by MCL 168.472a at all. This holds as to both the current version and the proposed new version,” added Boal. “If the Legislature amends 168.472a to impose any time restriction, it is still the same problem. It is the time restriction that was the basis of the AG opinion.”

Boal explained, “Article 2 Section 9 of the constitution is not to be ‘meddled with’ by the Legislature, and that the right is ‘self-executing,’ meaning, the Constitution spells out all the important terms. The supreme court found ‘It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision.’” Wolverine Golf Club v Secretary of State (1971).

“Senate Bill 776 is a bald attack on our campaign and on the state constitution by our opponents in the oil and gas industry,” said Campaign director LuAnne Kozma. “Our constitutional right to petition the government to initiate a law has been upheld time and again by the Michigan Supreme Court. Many volunteers in our campaign as well as the voters who sign our petition are extremely weary of attempts that thwart, derail and deny democracy. More poisoned water from fracking and more costs to the state fighting its own people in court, is not what Michiganders want. The industry knows the tide is turning against them so they are resorting to this.”

“ If the bill is enacted into law,” Boal added, the Committee to Ban Fracking would be forced to litigate.”

Boal’s testimony is available on the Committee’s website, www.letsbanfracking.org.

The campaign director credits a volunteer base of over 700 people from around the state for working on the grassroots campaign. Of the 150,000 signatures collected as of last November, volunteers collected over 135,700 and paid circulators collected about 16,000.

To volunteer with the Committee, register on the campaign’s website (www.LetsBanFracking.org). The ballot language can be found at the Committee to Ban Fracking in Michigan’s website and also on the Michigan Secretary of State’s website.

(2) Notwithstanding any other provision of law to the contrary, beginning January 1, 1998, a person who appears to vote in an election and whose name appears in the qualified voter file for that city, township, village, or school district is considered a registered voter of that city, township, village, or school district under this act.

168.476 Petitions; canvass by board of state canvassers; use of qualified voter file; hearing upon complaint; investigations; completion date; disposition of challenges; report.

(1) Upon receiving notification of the filing of the petitions, the board of state canvassers shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered electors. The qualified voter file shall be used to determine the validity of petition signatures by verifying the registration of signers and the genuineness of signatures on petitions when the qualified voter file contains digitized signatures. . . . [EMPHASIS ADDED]